R v Y.G [2025] TOSC 15; CR 159 of 2024 (7 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 159 of 2024

BETWEEN:
R E X
-Prosecution
AND:
Y.G
-Accused

SENTENCE

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC
Appearances: Mrs T Vainikolo for the Crown Prosecution
Mrs S Fonua for the Defendant
Date: 7 March 2025

1. THE CHARGE

1. On 18 November 2024, following a trial by judge alone, I found you guilty of the following charges;
   1. Count 1: Serious Indecent Assault contrary to section 124(1), (2) and (3) of the Criminal Offences Act.
   2. Count 2: Serious Indecent Assault contrary to section 124(1), (2) and (3) of the Criminal Offences Act.
      2. CROWN SUBMISSIONS
2. On 15 January 2025, I received submissions from the Crown to assist the Court when considering your sentence today.
3. Aggravating and Mitigating factors were submitted and the following comparable sentences in support:
   1. R v Vea (Unreported, Supreme Court, CR 251 of 2020)
   2. Rex v Afeaki (Unreported, Supreme Court, CR 208 of 2019)
   100. Rex v S.R CR 3 of 2024
   4. Rex v ZY CR 170 of 2023
4. A victim impact report was also included in their submissions where the Complainant’s mother described the emotional distress suffered by the Complainant.
5. The recommended sentence for you by the Crown is;
   1. Count 2: 30 months’ imprisonment with the final 12 months suspended for 2 years on conditions.
   2. Count 1: 18 months’ imprisonment concurrent to Count 2
      100. PRESENTENCE REPORT
6. A presentence report was filed from the Probation Office on 3 March 2025.
7. The report detailed your upbringing which was stable until your father became ill, your personal history and factors relating to this offending with their recommendation on sentencing.
8. The report states that you are a hardworking man however you have a history of sexual abuse, and you continue to deny the offending and lack any remorse given the Court’s decision on your trial.
9. A custodial sentence is recommended given the findings about you detailed in the report.
   4. DEFENCE SUBMISSIONS
10. I received defence submissions from learned counsel on your behalf, filed with the Court on 7 March 2025.
11. Aggravating and Mitigating factors were submitted and the following comparable sentences in support:
    1. R v Vea (Unreported, Supreme Court, CR 251 of 2020)
    2. R v P.F CR 212 of 2019
    100. R v Hu’akau (Unreported, CR 107 & 108 of 2017)
    4. R v SR CR 94 of 2024
    5. R v ZY (a pseudonym) CR 170 of 2023
12. According to your counsel, the most appropriate sentence for you is 18 months’ imprisonment for each count and to be concurrent to each other, to be fully suspended.
    5. DISCUSSION
13. The Following a trial, you were convicted of two counts of serious indecent assault of a child. The child in question was 15 at the time of the incident and you are her father.
14. On two occasions, you returned home after drinking kava while the complainant was asleep, and she woke up to find you massaging both her breasts.
15. You then in her words, “sucked her breasts then pull down her skirt and slept next to her.” The same thing happened a second time in a different location. What is serious about your case is the relationship between yourself and the complainant, yshe is your daughter, a child of 15 years who looked to you for protection and got abuse in return.
16. Another feature of your case is your total lack of remorse which continues even today and your insistence that what I find happened on plain evidence did not happen.
17. The original probation report described you as a man having no previous convictions. It has now come to light that that is untrue and that on 15 April 2015, you were convicted of raping a female above the age of 16 and was sent to prison in New Zealand for 5 years.
18. Earlier you had also been convicted of common assault on a taxi driver and giving false statements after an accident in New Zealand, so you are not a man as good character.
19. In fact, you are a defendant who had been found guilty of a previous serious sexual offence, why you were described as not having previous convictions I’m puzzled to know, and I will make enquiries in due course. I say at once that I do not in any way hold it against you that those serious mistakes were made.
20. I have given careful consideration to all the comparable sentences which have been cited both by the prosecution and the defence but of course each case must be decided on its own particular facts, and this is what I endeavour to do.
21. Now it is the duty of the courts to protect society, especially young women and girls from sexual abuse, particularly abuse within the family which is difficult to detect and which causes lasting damage.
22. In your case I reject the submissions made on your behalf that the complainant has suffered no particular damage as a result of what happened because she continued to be on friendly terms with her siblings which gave evidence against her.
23. Of course, she would want to be on friendly relations with her family, a growing learning has shown that is not uncommon among victims of sexual abuse.
24. I heard from the complainant herself, and I am entirely satisfied that she has suffered considerable emotional distress because of what you did in this case.
25. I accept the observation in the victim impact report that the complainant’s elder siblings ganged up on her to defend you, and I refer to the statement from the complainant’s mother that she was distressed and traumatised because of the alleged incident and the ensuing bitter relationship with her older siblings because of this complaint.
26. It is no surprise to that the complainant was reluctant to give evidence at the trial, but she had the fortitude to do so in the teeth of your persistent protestations of innocence.
27. In my view the appropriate custodial sentence on count 1 is 18 months’ imprisonment and 24 months on count two because it was a repeat offence.
28. I can find no mitigating factors or that any Mo’unga guidelines apply to you when considering whether to suspend a whole or part of your sentence.
29. You are not a man of good character, you are not young, you committed an earlier sexual offence in New Zealand, you persist in denying the allegations and even today do not accept what you did in defiance of the findings I made, and I can see very little prospect of rehabilitation.
30. The upshot is that you will serve a total of 24 months imprisonment on count 2, with the 18 months concurrent in count 1.
31. Any time served on remand will count towards your final sentence.
    6. RESULT
32. For Count 2 of Serious Indecent Assault, I impose a sentence of 24 months’ imprisonment.
33. For Count 1 of Serious Indecent Assault, I impose a sentence of 18 months’ imprisonment, concurrent to Count 2.
34. For the avoidance of doubt, you will serve a total of 24 months imprisonment.
35. I further order that nothing which leads to the identity of the complainant must be published and any report of these proceedings must anonymise all parties so that the identity of the complainant is protected pursuant to s119 of the Criminal Offences Act.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE
NUKU’ALOFA
7 March 2025